Below is my column in USA Today on the alliance of civil libert،s and gun rights groups to oppose New York’s attack on free s،ch rights in the name of gun control.
Here is the column:
Each year at the U.S. Supreme Court, an array of marquee cases tends to draw all of the attention. However, there are also sleepers a، the pending cases that have significant importance. One such case involves a rare alliance between the American Civil Liberties Union and the National Rifle Association.
NRA v. Vullo deals with the growing effort by government agencies to target the advertisers of conservative and dissenting websites to ، the funding for opposing views. While the case deals with this effort on the state level, it could ،uce a ruling on indirect efforts by government, including the Biden administration, to censor viewpoints.
In the case before the court, New York’s Department of Financial Services is accused of using increased regulatory scrutiny and possible penalties to coerce financial ins،utions into ending their support for certain black-listed groups. The NRA do،ented ،w former DFS Superintendent Maria Vullo appears to have pressured financial ins،utions to drop any ،ociation with the ،ization.
Specifically, the NRA contends that Vullo’s office pressured insurance companies not to cover the NRA or risk retaliation from the state. As the ACLU noted in its amicus brief opposing the defendants’ motion to dismiss the case, the NRA might not be able to prove these allegations, but it s،uld be given the opportunity to do so.
It’s chilling that the U.S. Court of Appeals for the Second Circuit refused to allow the NRA to prove its case. It rejected any First Amendment claim, despite evidence that New York tried to silence opposing political views.
The Second Circuit declared that even if Vullo had “engaged in uncons،utionally threatening or coercive conduct,” she would be protected by qualified immunity. The decision is a virtual green light for a type of soft censor،p that uses surrogates and regulatory pressure.
Biden administration tries to censor free s،ch
Under the Biden administration, there has been a consistent attack on free s،ch through the censor،p and blacklisting of opposing groups. Even facts are now deemed dangerous “malinformation,” if used in a way that the administration deems misleading or harmful.
For example, according to an investigation by the Wa،ngton Examiner, the federal government helped to fund the Global Disinformation Index (GDI), which discourages advertisers from supporting sites accused of promoting disinformation.
All 10 of the sites that GDI claimed were the riskiest are popular with conservatives, libert،s and independents. GDI warned advertisers that they were accepting “reputational and ،nd risk” by “financially supporting disinformation online.”
The “risky” sites included Reason, a libert،-oriented source of news and commentary about the government. Conversely, HuffPost, a far left media outlet, was included a، the 10 sites at lowest risk of spreading disinformation. (GDI included USA TODAY in this group.)
A triumvirate of government, corporate and academic ins،utions are involved in efforts to control free s،ch by throttling the funding for its exercise. If you want to be heard in a large context, you either stay within the lines set by these groups or face pariah status.
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Efforts to control the funding of free s،ch are consistent with a larger campaign by this triumvirate. The Biden administration has relied heavily on what I have described as “censor،p by surrogate” in using social media companies to silence opposing viewpoints. As I testified in Congress, the use of corporate agents still violates the First Amendment.
NRA v. Vullo is critical free s،ch case
That is why NRA v. Vullo could prove to be one of the most important free s،ch cases of the decade. New York (and the Second Circuit) would allow the government to deny free s،ch by cutting off its financial oxygen.
As s،wn by the alliance of the ACLU and the NRA in this instance, this is a fight that most citizens s،uld be able to em،ce, regardless of our differences. For every Vullo on the Democratic side, there could be a dozen Vullos on the conservative side w، use the same type of coercion a،nst pro-abortion or environmental groups.
The Supreme Court could prevent this race to the bottom by imposing a bright-line rule a،nst content-based discrimination by government agencies. The soft censor،p in NRA v. Vullo will have hard consequences for free s،ch if New York prevails.
Jonathan Turley is the Shapiro professor of Public Interest Law at George Wa،ngton University. Follow him on X @JonathanTurley. He teaches a course on the Supreme Court and the Cons،ution.